Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Monday, April 08, 2013

Access Copyright Thrashes Thrice

A lawsuit has been launched against York
University. It alleges that York's purported fair dealing guidelines
authorize and encourage copying that is not supported by the law, and that
there is no
justification for the University to operate outside the interim tariff.

An interim elementary and secondary school
education tariff application has been filed with the Copyright
Board of Canada. This application seeks an effective enforcement mechanism
against the
ministries of education and Ontario school boards for their stated intention to
stop paying the
royalties set by the Copyright Board.

A proposed post‐secondary tariff has been filed
with the Copyright Board of Canada for the period of
2014‐2017. With this application, Access Copyright ensures the continuation of
an existing
process at the Copyright Board to establish the royalties to be paid for the
use of copyright‐protected
content in post‐secondary educational institutions.

This
application for an interim tariff seeks an enforceable tariff based upon AC’s
notion of fair dealing, notwithstanding that the K-12 schools have all
apparently determined based upon legal advice from counsel that they do not
need a license from AC, presumably because everything they copy is either not
in AC’s repertoire or is insubstantial or is fair dealing. Much as certain
folks may be in denial, we have heard from the Supreme Court of Canada and
Parliament on these issues quite recently and quite explicitly. This
application will be nothing if not controversial, if it indeed proceeds.

Interestingly,
this follows a recent speech in Toronto by the General Counsel of the Board. A
very reliable person who attended that speech (I did not) has advised me that the speaker commented that he had heard that schools would be
relying on a fair dealing policy in which ‘everything is claimed to be fair
dealing’ and that he thought it was “courageous” for schools to rely on such a
policy. He reportedly then said, with AC very much present, that if AC wanted
to move forward on the K-12 2010-2012 and 2013-2015 files, it could bring the
fair dealing policy before the Board. My source of this information is “positive
that he said the word “courageous” but the other sentences aren't exact quotes”.

I also attach AC’s proposed post-secondary tariff for 2014-1017. I haven’t read it in any detail. However, I note
that it still purports to cover posting a link or hyperlink to a digital copy.
And, ever the apparent voice of sweet reason, the proposed FTE rate is lowered by $10 to
$35 and $25 for Universities and “all other Educational Institutions”
respectively. That said, the fact is that dozens of post-secondary institutions have decided that an AC license is not worth taking at even the "discounted" prices earlier offered of $26 and $10 respectively.Prof. Sam Trosow has called this #ACdeal “a bad deal at any price”

I am waiting for a copy of the lawsuit against York
University supposedly based upon its fair dealing guidelines. In the meantime,
it’s interesting to speculate on why AC would seek what sounds like a very vague declaration – which the Courts may be
disinclined to even consider - rather than actually sue for infringement (if
any, and leaving aside some rather existential questions about "standing") or to deal with this in the current and proposed Board proceedings.